Michael Worsham v. Accounts Receivable Management , 497 F. App'x 274 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2390
MICHAEL C. WORSHAM,
Plaintiff – Appellant,
v.
ACCOUNTS RECEIVABLE MANAGEMENT, INC.,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:10-cv-03051-JKB)
Argued: October 25, 2012 Decided: November 14, 2012
Before SHEDD, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Michael Craig Worsham, Forest Hill, Maryland, for
Appellant. John Curtis Lynch, TROUTMAN SANDERS, LLP, Virginia
Beach, Virginia, for Appellee. ON BRIEF: Elizabeth S. Flowers,
TROUTMAN SANDERS, LLP, Virginia Beach, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Worsham brought this action against Accounts
Receivable Management, Inc. (“ARM”), alleging violations of the
Fair Debt Collection Practices Act (“FDCPA”) and the Maryland
Telephone Consumer Protection Act (“MTCPA”). After both parties
moved for summary judgment, the district court granted summary
judgment for ARM. Worsham now appeals, and for the following
reasons, we affirm.
I.
ARM is a debt-collection company that was trying to locate
a debtor, Martha Bucheli, 1 who is Worsham’s sister-in-law.
During ARM’s efforts to locate Bucheli, it discovered Worsham’s
phone number as a possible contact for Bucheli. ARM called
Worsham’s phone number approximately ten times in late May 2010.
Worsham answered only two of these phone calls, and both times
he heard a prerecorded message telling him to press “1” if he
were Martha and “2” if he were not Martha. On one of these
occasions, Worsham pressed “2” and upon hearing more prompts and
options, he hung up the phone. On the other occasion, Worsham
hung up the phone without pressing “2” to indicate he was not
1
This name is spelled “Bucheli” in some parts of the record
and “Buceli” in other parts. We use “Bucheli” in this opinion.
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Bucheli. At no point did Worsham speak to a live representative
from ARM.
Based on these phone calls, Worsham filed suit in state
court, alleging violations of the FDCPA, 15 U.S.C. § 1692 et
seq., the federal Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227, and the MTCPA, Md. Code, CL § 14-3201 et seq., as
well as asserting a state-law invasion of seclusion claim. ARM
removed the case to federal court, and after cross-motions for
summary judgment, the district court granted ARM’s motion and
denied Worsham’s motion. Worsham appeals the grant of summary
judgment for ARM on his FDCPA claims and MTCPA claim.
II.
We review a grant of summary judgment de novo, “applying
the same legal standards as the district court.” Pueschel v.
Peters, 577 F.3d 558, 563 (4th Cir. 2009). Summary judgment
should be granted if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). At this stage, we must view the evidence
in the light most favorable to the nonmoving party. Durham v.
Horner, 690 F.3d 183, 188 (4th Cir. 2012).
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III.
A.
Worsham appeals the grant of summary judgment for ARM on
three counts under the FDCPA, based on 15 U.S.C. §§ 1692b(3),
1692c(b), and 1692d(6), claiming that ARM’s phone calls violated
the statute. We disagree.
1.
We first address Worsham’s claim under 15 U.S.C. § 1692b. 2
Although third parties may understandably find debt-collection
calls bothersome or inconvenient, Congress has allowed debt
collectors to call third parties on multiple occasions in
certain instances. See 15 U.S.C. § 1692b. When communicating
with a third party, the debt collector shall “not communicate
with any such person more than once . . . unless the debt
collector reasonably believes that the earlier response of such
person is . . . incomplete and that such person now has . . .
complete location information.” Id. § 1692b(3). The use of the
word “reasonably” indicates that this is an objective standard
that the debt collector must meet to avoid liability under the
FDCPA. Cf. Restatement (Second) of Torts § 283 cmt. 3 (1965)
(observing that the “reasonable man” standard in tort-law
2
Because it is not necessary to our decision, we do not
decide whether ARM’s phone calls constitute “communications”
under 15 U.S.C. § 1692a(2).
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negligence is “an objective and external one, rather than that
of the individual judgment, good or bad, of the particular
individual”).
Here, Worsham’s complaint alleges that he heard “more
prompts and options” after he pressed “2” to indicate that he
was not Martha. J.A. 9. Based on this fact, a reasonable
person would believe that Worsham’s response to the call was
incomplete. Furthermore, a reasonable person would believe that
Worsham would have knowledge of Bucheli’s location at the time
of a later call based on his number appearing as a possible
contact for Bucheli. Nothing in the record contradicts these
facts, and Worsham cannot now contradict his own pleadings to
create a genuine issue of material fact. See, e.g., Schott
Motorcycle Supply, Inc. v. Am. Honda Motor Co., Inc., 976 F.2d
58, 61 (1st Cir. 1992) (observing that a “plaintiff should not
be allowed to contradict its express factual assertion in an
attempt to avoid summary judgment”); Bellefonte Re Ins. Co. v.
Argonaut Ins. Co., 757 F.2d 523, 528 (2d Cir. 1985) (“A party’s
assertion of fact in a pleading is a judicial admission by which
it normally is bound throughout the course of the proceeding.”).
Accordingly, § 1692b(3) allowed ARM to continue calling Worsham
until it reasonably believed that it had received a complete
response, so ARM’s additional phone calls did not violate the
statute.
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2.
Worsham’s second FDCPA claim is based on 15 U.S.C. §
1692c(b). This section provides:
Except as provided in section 1692b of this title,
without the prior consent of the consumer given
directly to the debt collector, or the express
permission of a court of competent jurisdiction, or as
reasonably necessary to effectuate a postjudgment
judicial remedy, a debt collector may not communicate,
in connection with the collection of any debt, with
any person other than the consumer, his attorney, a
consumer reporting agency if otherwise permitted by
law, the creditor, the attorney of the creditor, or
the attorney of the debt collector.
15 U.S.C. § 1692c(b) (emphasis added). This section explicitly
exempts from liability any calls permitted under § 1692b.
Because ARM’s calls were permitted under § 1692b, those calls
cannot give rise to liability under § 1692c(b). Thus, summary
judgment was properly granted for ARM on this claim.
3.
Worsham’s third FDCPA claim faces the same problem.
Section 1692d(6) provides:
A debt collector may not engage in any conduct the
natural consequence of which is to harass, oppress, or
abuse any person in connection with the collection of
a debt. Without limiting the general application of
the foregoing, the following conduct is a violation of
this section . . . . Except as provided in section
1692b of this title, the placement of telephone calls
without meaningful disclosure of the caller’s
identity.
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Id. § 1692d(6) (emphasis added). Like § 1692c(b), § 1692d(6)
expressly exempts from liability calls permitted under § 1692b.
As we have discussed, ARM’s calls were permitted under § 1692b.
Summary judgment was therefore properly granted for ARM on this
claim as well.
B.
Finally, we turn to Worsham’s MTCPA claim. In an earlier
suit filed by Worsham, the Maryland Court of Special Appeals
dealt with this same state-law claim under the MTCPA. See
Worsham v. Ehrlich, 957 A.2d 161 (Md. Ct. Spec. App. 2008).
There, the Maryland court explicitly held that the MTCPA did not
create the cause of action based on an alleged violation of 47
C.F.R. § 64.1200(b), the same cause of action that Worsham
alleges here. Id. at 171–72. Although the question of whether
the MTCPA creates this cause of action has not been answered by
Maryland’s highest court, we nevertheless see no reason to
reject the determination of the state’s intermediate appellate
court that this cause of action does not exist under state law,
particularly in light of the fact that Worsham was the plaintiff
in that case. See United States v. King, 673 F.3d 274, 279 (4th
Cir. 2012) (“If the highest court of the state has not decided
an issue of state law, we generally defer to the state’s
intermediate appellate courts on the issue.”). Based on the
decision of the Maryland Court of Special Appeals in Worsham v.
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Ehrlich, summary judgment was properly granted for ARM on
Worsham’s MTCPA claim.
IV.
For the foregoing reasons, we affirm the order granting
summary judgment for ARM.
AFFIRMED
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